Legal

Power of Attorney

Example: Durable Power of Attorney

NOTICE The purpose of this power of attorney is to give the person you designate (your “Agent”) broad powers to handle your property, which may include powers to sell or otherwise dispose of any real or personal property without advance notice to you or approval by you. This power of attorney does not impose a duty on your agent to exercise granted powers, but when powers are exercised, your agent must use due care to act for your benefit and in accordance with this power of attorney. Your agent may exercise the powers given here throughout your lifetime, even after you become incapacitated, unless you expressly limit the duration of these powers or you revoke these powers or a court acting on your behalf terminates your agent’s authority. Your agent must keep your funds separate from your agent’s funds. A court can take away the powers of your agent if it finds your agent is not acting properly. The powers and duties of an agent under a power of attorney are explained more fully in 20 Pa.C.S. Chapter 56. If there is anything about this form that you do not understand, you should ask a lawyer of your own choosing to explain it to you. I have read or had explained to me this notice and I understand its contents. _______________________________ ______________________ Principal’s Name Date Acknowledgement by Agent The agent shall have no authority to act as agent under the power of attorney unless the agent has first executed and affixed to the power of attorney the following acknowledgement. I, _______________________________, have read the attached power of attorney and am the person identified as the agent for the principal. I hereby acknowledge that in the absence of a specific provision to the contrary in the power of attorney or in 20 Pa. C.S. when I act as agent: I shall exercise the powers for the benefit of the principal. I shall keep the assets of the principal separate from my assets. I shall exercise reasonable caution and prudence. I shall keep a full and accurate record of all action, receipts, and disbursements on behalf of the principal. _________________________________ __________________________ Agent Date DURABLE POWER OF ATTORNEY I, ________________________________, hereby revoke any general power of attorney that I have heretofore given to any person and do hereby appoint _______________________________________ to be my true and lawful Agent for me and on my behalf to perform all such acts as my Agent in his/her absolute discretion may deem advisable, as fully as I could do if personally present. This Power of Attorney is durable and shall not be affected my subsequent disability or incapacity. I. Except as otherwise stated in this Power of Attorney, my Agent is given the fullest powers to act on my behalf, including the following powers (cross out and initial the powers you do not want to give): • To make limited gifts. • To create a trust for my benefit. • To make additions to an existing trust for my benefit. • To claim an elective share of the estate of my deceased spouse. • To disclaim any interest in property. • To renounce fiduciary positions. • To withdraw and receive the income or corpus of a trust. • To authorize my admission to a medical, nursing, residential, or similar facility and to enter into agreements for my care. • To authorize medical and surgical procedures. • To engage in real property transactions. • To engage in tangible personal property transactions. • To engage in stock, bond, and other securities transactions. • To engage in commodity and option transactions. • To borrow money. • To enter safe deposit boxes. • To engage in insurance transactions. • To engage in retirement plan transactions. • To handle interests in estates and trusts. • To pursue claims and litigation. • To receive government benefits. • To pursue tax matters. • To make an anatomical gift of all or part of my body. • To make or do any of the following (use this space to list any additional powers you want your Agent to have): ________________________________________________________

II. This Power of Attorney shall not expire by reason of lapse of time. III. This Power of Attorney shall be revoked by my giving my Agent written notification of the revocation. This notice shall not be considered binding unless actually received. Notice shall be deemed to have been received if hand-delivered or if mailed via the United States Post Office or other nationally-recognized parcel service using a delivery confirmation or tracking receipt. IV. My Agent shall have authority to make copies of this Power of Attorney and to certify and deliver the copy or original to any person, entity, or government agency. I hereby agree that any third party receiving a duly executed copy or facsimile of this Power of Attorney may act hereunder and that revocation or termination of the Power of Attorney shall be ineffective as to such third party unless the third party possesses notice or knowledge of such revocation or termination. V. I willfully and voluntarily sign this document and I understand its purpose. ________________________________ ______________________ Principal’s Signature Date Statement and Signature of Witnesses. We sign below as witnesses. This declaration was signed in our presence. The declarant appears to be of sound mind, and to be making this designation voluntarily, without duress, fraud, or undue influence. (Two witnesses at least 18 years of age are required by Pennsylvania law and should witness your signature in each other’s presence. A person may not be a witness if he/she signs this document on behalf of and at the direction of a Principal. _______________________________ ________________________________ Witness Signature Witness Signature _______________________________ ________________________________ Print Name Print Name Notarization (Optional) Notarization of document is not required in Pennsylvania, but if the document is both witnessed and notarized, it is more likely to be honored in some other states. On this ______ day of ___________________, 20____, before me personally appeared the aforesaid declarant, to me known to be the person described in and who executed the foregoing instrument and acknowledged that he/she executed the same as his/her free act and deed. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal in the County of __________________________, Commonwealth of Pennsylvania, the day and year first above written. ______________________________ ___________________ Notary Public My Commission Expires.

Guardianship Procedures

GUARDIANSHIP PROCESS (for Texas)

THE GUARDIANSHIP APPLICATION

A family member, friend or interested party (the “applicant”) files an Application for Appointment of Permanent Guardian. The application is usually filed in the county where the proposed ward resides. Along with the application, the applicant must provide documentation of a thorough examination performed within the past four months by a physician licensed in Texas. If the proposed ward’s alleged incapacity results from intellectual disability, the proposed ward shall be examined by a physician or a psychologist licensed in this state or certified by the Texas Department of Mental Health and Mental Retardation to perform the examination, unless there is written documentation filed with the court that shows that the proposed ward has been examined according to the rules adopted by the Texas Department of Mental Health and Mental Retardation not earlier than 24 months before the date of a hearing to appoint a guardian for the proposed ward. The physician or psychologist shall conduct the examination according to the rules adopted by the Texas Department of Mental Health and Mental Retardation and shall submit written findings and recommendations to the court. In certain cases, the physician or psychologist may be asked to testify as to the nature and degree of the proposed ward’s incapacity.

The application usually contains the following information: the name, sex, date of birth, and address of the proposed ward the name, relationship and address of the person the applicant desires to have appointed as guardian, and the social security number of the proposed ward and of the person the applicant desires to have appointed as guardian if required by that court whether guardianship of the person or estate, or both, is sought the nature and degree of the alleged incapacity, the specific areas of protection and assistance requested, and the limitations of rights requested to be included in the court’s order of appointment the facts requiring that a guardian be appointed and the interest of the applicant in the appointment the nature and description of any kind of guardianship existing for the proposed ward in Texas or in any other state the name and address of any person or institution having the care and custody of the proposed ward the approximate value and description of the proposed ward’s estate, including any compensation, pension, insurance or allowance to which the proposed ward may be entitled the requested term (one year or continuing) of the guardianship, if known the name and address of any person holding a power of attorney, if known, and a description of the type of power of attorney if the proposed ward is a minor: whether the minor was the subject of a legal conservatorship proceeding within the preceding two-year period, and if so,where and what was the disposition; and the names of the parents and next of kin of the proposed ward and whether either or both of the parents are deceased if the proposed ward is 60 years of age or older, the names and addresses, to the best of applicant’s knowledge, of the proposed ward’s spouse, siblings, and children; or if there is no spouse, sibling or child, the names and addresses of the proposed ward’s next of kin facts showing that the court has venue over proceeding; and if applicable, that the person whom the applicant desires to have appointed as a guardian is a private professional guardian who has complied with the requirements of the Texas Probate Code.

The court clerk will issue a citation to be served in person on the proposed ward. If the application is filed in a Statutory Probate Court, the court will appoint a court investigator. The investigator meets with the proposed ward, attorney of record, social workers, family members and any other persons necessary to determine if guardianship is the least restrictive manner in which to handle the case.

The court investigator files a report with the court. This report is made available to the attorney of record. If the application is not withdrawn based on the court investigator’s review and recommendation, an attorney ad litem is appointed to advocate for the alleged incapacitated individual.

The attorney ad litem reviews the report furnished by the court investigator, conducts further investigation, if necessary and meets with the proposed ward. A time and date for a court hearing is set and notice is issued to all interested persons, including the alleged incapacitated individual.

The proposed ward must be at the hearing unless the court determines that a personal appearance is not in the proposed ward’s best interest. The court may close the hearing if the proposed ward or the proposed ward’s counsel requests a closed hearing. The proposed ward is entitled, on request, to a jury trial.

Any person who does not have an adverse interest may contest the guardianship. This includes the alleged incapacitated person. At the hearing, the court inquires into the ability of the alleged incapacitated adult to feed, clothe and shelter himself or herself, to care for his or her own physical health and to manage his or her own property and financial affairs.

Before appointing a guardian, the court must find by clear and convincing evidence that: the proposed ward is an incapacitated person it is in the best interest of the proposed ward to appoint a guardian; and the rights of the proposed ward or the proposed ward’s property will be protected by the appointment of a guardian.

The court must find by a preponderance of the evidence that: the court has venue or that this court is the proper court to make the determination of necessity of guardianship the person to be appointed as guardian is eligible and qualified to serve as guardian the guardianship of a minor is not solely to determine or change school districts, and the proposed ward is totally incapacitated; or is partially incapacitated, and can perform some, but not all, of the tasks necessary to care for himself or herself and manage the individual’s property.

If the court finds that the adult person possesses the capacity to care for himself or herself, the court dismisses the application.

If the court finds that the person lacks some, but not all, of the ability necessary to care for himself or herself, or to manage his or her property, the court appoints a guardian with limited powers, leaving as many decisions as possible to the incapacitated individual.

If the court finds that the proposed ward is totally without the capacity to care for himself or herself, the court includes a finding of that fact in its final order and appoints a guardian with full authority.

The order contains findings of fact and specifies powers and duties granted to the guardian and any limitations of those powers, the name of the person appointed guardian, the name of the ward, whether the guardianship is of the person or the estate or both, the amount of the bond, whether an appraisal is necessary, and gives directions to the guardian regarding the appraisal of the ward’s assets.

The bond is an insurance policy which protects the assets of the ward should the guardian’s action create financial loss to the estate. The penal amount, or dollar amount, is set by the judge in the amount that is equal to the value of the ward’s personal property plus one year’s income.

When the bond has been approved by the court and the guardian files the oath, the guardian is considered qualified, and Letters of Guardianship are issued by the county clerk.

Letters of Guardianship are evidence of the authority of the guardian to act on behalf of the ward. Letters expire sixteen months after the date of issue. The guardian may renew Letters of Guardianship of the person after he or she files an annual report of the person and the court approves that report. The guardian of the estate may renew letters after the court receives and approves the guardian’s annual accounting. The court may also require that the next year’s bond premium be paid in advance.

GUARDIANSHIP ALTERNATIVES

Because guardianship takes away a person’s rights, the Texas courts will look for a less restrictive alternative before granting a guardianship. Less restrictive alternatives include the following:

MONEY MANAGEMENT

Volunteer money management programs offer a less restrictive alternative to guardianships for low-income elderly and adults with disabilities who are incapable of managing their checking accounts themselves and have no one else available or appropriate to assist them.

The Purpose of these programs is: to promote and prolong independent living for individuals who are at risk of losing their independence due to an inability to manage a checking account, andto prevent financial abuse, neglect and exploitation of those individuals.

This is accomplished through the use of volunteers who serve as: Bill Payers: provide budget set-up, checkbook balancing, bill paying assistance each month; or Representative Payees: provide budget set-up, checkbook balancing, bill paying assistance each month, have signature authority for government benefits and are designated by one of the following federal agencies to manage a client’s government benefits:

The following safeguards are built into most volunteer money management programs in an effort to protect clients:

Insurance coverage for client’s funds, volunteers and agencies;

Criminal background checks on all volunteers and staff;

Monitoring of bank accounts

Monitoring of local programs

Technical assistance to local programs, and

Volunteer supervision and support.

This program is intended for those who have no other source of assistance. A volunteer money manager must sign a conflict of interest statement and does not make any decisions about or give advice regarding property or investments.

POWER OF ATTORNEY

A Power of Attorney (POA) is an instrument executed by an adult who has capacity authorizing another person to act as his or her agent. The power to the agent may be either specific or general.

DURABLE POWER OF ATTORNEY

If specifically stated in the document, the POA becomes a durable power of attorney and does not terminate upon the disability or incapacity of the principal. The durable POA also may be limited so that it takes effect only upon the principal’s disability. It must be signed by the principal and notarized, but does not need to be witnessed.

A durable POA terminates upon qualification of a guardian of the estate. A durable POA also may be terminated by the principal or may have date of expiration as provided in the document.

Durable Power of Attorney for Health Care

The durable power of attorney for health care is an instrument executed by an adult with capacity giving another person the authority to make health care decisions for him or her.

This power only takes effect upon written certification by a physician that the principal lacks capacity to make health care decisions. The physician’s certificate must be filed in the medical records of the patient.

The durable power of attorney for health care must be signed by the principal in the presence of two (2) disinterested witnesses. The witnesses must also sign the instrument.

The durable power of attorney for health care does not terminate upon qualification of a guardian unless so ordered by the court.

DIRECTIVE TO PHYSICIANS

The Directive to Physicians is a document that allows an adult with capacity to instruct physicians to withhold artificial means of extending the natural process of dying. To make a valid Directive to Physician, one must be:

at least eighteen (18) years old;

of sound mind; and acting of his or her own free will

A Directive to Physicians need not be notarized but must be witnessed by two qualified persons. Two physicians must make a determination that the patient has a terminal condition and that the patient’s situation meets other statutory requirements before acting on the directive.

For further information on this option, contact the Texas Medical Association Board of Councilors in Austin.

MANAGEMENT OF COMMUNITY PROPERTY

If an individual is judicially declared incapacitated, the spouse may have the full authority to manage, control and dispose of the entire community estate without the necessity of a guardianship, if the court does not find the spouse to be disqualified.

The standards for disqualification are those which apply to guardians. The qualification of a guardian of the estate does not take away control from the competent spouse over the community property.

Special Needs Trust

The Problem: how to give assets to your son or daughter with special needs without destroying his or her Medicaid and SSI eligibility.

In Texas, Medicaid and SSI are reserved for those persons with limited assets. Furthermore, qualifying for Medicaid and/or SSI qualifies that person for a whole host of other programs including Community Living Assistance and Support Services (CLASS), Home and Community-based Services (HCS), and Day Activity and Health Services (DAHS), just to name a few. In general, an applicant must have less than $2,000 in “countable assets” in order to qualify for the programs. Parents wanting to leave property to their son or daughter on public assistance previously faced a dilemma: leave property to their son or daughter and destroy Medicaid/SSI eligibility, or disinherit their son or daughter entirely.

Alternatively, a person on public assistance may inadvertently come into property, either through the recovery of a personal injury lawsuit or an unplanned inheritance resulting from an intestate distribution. The result is the same, loss of Medicaid/SSI eligibility.

The Solution: a Special Needs Trust

A special needs trust, also referred to as a supplemental needs trust or “SNT”, is a trust that holds property solely for the benefit of a disabled person referred to as the beneficiary. Since the assets in the trust are not readily available to the beneficiary, the assets in the trust are considered “non-countable” assets for Medicaid and SSI purposes. The trust therefore allows you to transfer property for your son’s or daughter’s benefit without destroying their eligibility for public assistance.

Establishing the Special Needs Trust

With the assistance of an attorney, establishing a special needs trust is easy. In order to determine what type of trust you need, you first need to determine the source of the assets to be placed into the trust. You also need to decide when to fund the trust. Here are some attributes of special needs trusts:

Source of Assets

Self-funded or first-party or D-4-A trusts. In this type of trust, the assets to be placed in the trust already belong to the beneficiary. The assets may have resulted from life-long savings, an inheritance that was not properly planned, or the proceeds of a lawsuit. Once the assets are placed into the trust, the beneficiary can continue to receive public assistance while still having assets in the trust. There is a downside to this type of trust: if there are any assets left in the trust upon the death of the beneficiary, they must be used to reimburse the state for any medical expenditures it has made for the benefit of the beneficiary.

Third-party trusts. In this type of trust, the assets to be placed in the trust belong to someone other than the beneficiary. Typically the assets are coming from a parent, grandparent, or sibling, but the assets can come from anyone. So in addition to parents, this type of trust is perfect for grandparents and siblings who want to leave part of their estates to their favorite grandchild, brother or sister. Furthermore there is no Medicaid pay-back requirement in this type of trust. The trust grantor may specify who receives the assets that are remaining in the trust upon the death of the beneficiary.

Timing

Inter-vivos trusts. This type of trust is established during the beneficiary’s lifetime and the grantor’s lifetime. Hence the term “inter-vivos” which means “between the living”.

Testamentary trusts. This type of trust is established upon the death of the grantor. The trust is included as part of the grantor’s last will and testament, hence the name testamentary trust.

The requirements for Special Needs Trusts

In Texas, there are no special statutory requirements for a special needs trust. In order to be considered a valid trust, a special needs trust need only meet the requirements of any other type of Texas trust. So when we speak of the requirements for a special needs trust, we are talking about the requirements to preserve Medicaid/SSI eligibility, not the requirements to be considered a valid trust.

Self-Funded Trust

The requirements for self-funded special needs trust are the most onerous. A self-funded special needs trust must meet the following requirements:

the trust must be irrevocable; the trust must be established by a parent, grandparent, guardian or court; the beneficiary must be the only beneficiary under the trust; the beneficiary must be considered disabled under 42 U.S.C. Section 1382c(a)(3)(A), i.e. the beneficiary is unable to engage in any substantial gainful activity by reason of any medically determinable impairment which has lasted or will last at least twelve months; the beneficiary does not have access to the trust, i.e. the trustee cannot be compelled to make distribution for the support and maintenance of the beneficiary; and the assets of the beneficiary were used to form all or part of the corpus of the trust; the assets must be placed into the trust before the beneficiary turns 65 years; the state will receive all amounts remaining in the trust upon the death of the beneficiary up to an amount equal to the total medical assistance paid on behalf of the beneficiary.

Many of the federal requirements come from 42 United States Code § 1396p. In fact, the term “D-4-A” comes from the subsection that contains the law for self-settled trusts, 42 U.S.C. § 1396p(d)(4)(A). Title 1, Part 15, Chapter 358, Subchapter C, Division 2, Rule §358.336 of the Texas Administrative Code contains the state requirements.

Third-Party Trusts

The requirements for third-party special needs trust are less stringent. A third-party special needs trust must meet the following requirements:

the trust must be irrevocable; the trust must be established by a parent, grandparent or any other person who wants to give assets to the beneficiary;the beneficiary must be the only beneficiary under the trust; the beneficiary must be considered disabled under 42 U.S.C. Section 1382c(a)(3)(A), i.e. the beneficiary is unable to engage in any substantial gainful activity by reason of any medically determinable impairment which has lasted or will last at least twelve months;the beneficiary does not have access to the trust, i.e. the trustee cannot be compelled to make distribution for the support and maintenance of the beneficiary;no assets of the beneficiary can be used to form all or part of the corpus of the trust; there is no age requirement – the assets can be placed into the trust at any time; and there is no payback requirement to the state.

So if there is no payback requirement to the state, where do the funds remaining in the trust go after the beneficiary’s death? The Grantor gets to decide who receives the remaining funds. Therefore, a parent can designate their disabled son or daughter as the primary beneficiary, and their siblings as the remainder beneficiaries. Thus, it pays to plan. Getting property into the Trust

Getting assets into a special needs trust can be very easy or very difficult, depending upon the amount of pre-planning done by the entire family.

The funding and management of a testamentary special needs trust is extremely easy. A testamentary trust is actually a subsection of your will that includes a trust. The gift section of your will typically leaves a gift to the trust. The will then spells out the terms of the trust. Thus, the trust is a “springing” trust in that it springs into existence upon your death. Before that happens, however, there is no trust and therefore no need to manage the trust. For the grantor, it could not be any easier.

The funding and management of an inter-vivos trust is slightly more difficult. An inter-vivos trust is established during your lifetime. Instead of being part of your will, the trust is its own separate and distinct legal document. Once the trust is executed, it must be funded with assets. The trust need only be funded before the beneficiary turns 65 so you can choose to wait before you or someone else decides to transfer assets into the trust. Only then will you have to start the administration of the trust.

The funding and management of a first-party special needs trust is the most difficult. If the beneficiary is already in possession of the assets, then a parent, grandparent, guardian, or court can create the trust and transfer the beneficiary’s assets into the trust. The beneficiary may not create his or her own trust, even if he or she is otherwise legally competent. If the bank, finance company, or other person or entity in possession of the assets will not allow the transfer to occur, then a lawsuit must be filed in a court wherein the court orders that the assets be placed into the trust. Under this scenario, however, the beneficiary is in the position of trying to re-establish eligibility for benefits. This may result in the beneficiary going to the back of the line for benefits or even a permanent loss of benefits.

Conclusion

A family with special needs has a unique responsibility when it comes to estate planning. If a family member fails to execute a will, part of that family member’s estate may go to his or her loved one with special needs. This seemingly beneficial event could have the disastrous effect of inadvertently destroying Medicaid eligibility. A carefully drafted last will and testament coupled with a special needs trust can allow property to pass to your son or daughter without destroying their Medicaid and SSI eligibility. Contact the Duran Firm today to start work on your will and special needs trust.

Right to Life

Most States Don’t Require Doctors to Honor Advanced Directives That Direct Food, Fluids, Treatment (National Right to Life Committee)

The laws of all but twelve states may allow doctors and hospitals to disregard advance directives when they call for treatment, food, or fluids, according to a report issued by the NRLC Robert Powell Center for Medical Ethics. See full report.

Advance Directives: Protective Medical Decisions Document (Task Force on Euthanasia and Assisted Suicide) and The Will to Live (National Right to Life)

Published Reasearch on the High Rate of PVS Misdiagnosis:

The Lancet British Medical Journal News-Medical.net The Perilous Vegetative State (PDF) Scientific American Archives of Neurology Journal